High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No. 2590 of 2009

Date of Decision:12.8.2016

______________________________[_________________________

Dev Raj and Anr. …...Petitioners.

Versus

State of H.P. and Ors. ...Respondents

Coram

Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting

1

? Yes.

For the petitioners: Mr. B.C. Negi, Senior Advocate with Mr.

Narender Kumar, Advocate.

For the respondents: Mr. Rupinder Singh Thakur, Additional

Advocate General, with Mr. Rajat

Chauhan, Law Officer, for respondents No.

1 to 3.

M/s Neel Kamal Sood, Mr. Narender Thakur,

and Mr. Vasu Sood , Advocates, for

respondent No.6.

_________________________________________________________

Sandeep Sharma, J. (Oral)

By way of present writ petition filed under Article 226 of the

Constitution of India, the petitioners have prayed for following reliefs:-

i) Issue a writ of mandamus directing the Respondent

authorities to complete the construction of the Panchayat

Ghar at Village Masreena.

ii) Issue a writ of certiorari to quash Annexure P-13 passed

by the Secretary Panchayati Raj, Himachal Pradesh.

iii) Issue a writ of Certiorari to call for the records pertaining

to the case at hand.

iv) Direct the Respondent authorities to pay the cost of the

petition.

Whether reporters of the Local papers are allowed to see the judgment? Yes.

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v) Such other order, which this Hon’ble Court deems fit and

proper, may also be passed in favour of the petitioners, in

the interest of justice and fair play.

2. Briefly stated facts as emerged from the record are that

State of Himachal Pradesh, vide notification dated 20.8.2005 issued

under Section 3 of the Himachal Pradesh Panchayati Raj Act, 1994 (in

short “ the Act of 1994”), declared villages as mentioned in column

No.6 of the list attached with the notification as new panchayats and

in that process, new gram Panchayat namely Bandal (Kafla) was

created. It may be noticed that present petition is only concerned with

the newly created Gram Panchayat Bandal (Kafla). Aforesaid newly

created Gram Panchayat was created by de-linking two villages

namely Bandal and Chanjah from Gram Panchayat Majholi. On

8.11.2006, Gram Sabha meeting was convened to discuss the exact

place for construction of head quarter of the Gram Panchayat Bandal

(Kafla) and a resolution was passed, wherein land bearing khasra No.

414 measuring 4 biswas was donated/gifted by one Sh. Daulat Ram

vide gift deed No. 63/07 in favour of Gram Panchayat Bandal (Kafla)

for construction of the headquarter. As per aforesaid decision, the new

Gram Panchayat Ghar was to be constructed at place called

Masreena, which is alleged to be part of Kafla and is a sub village of

revenue village Bandal. As per petitioners, Masreena being central

place was selected for construction of Panchayat Ghar. Beside tha t

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this place was also feasible as well as accessible for each and

everyone. Finally on 20.8.2005, new gram Panchayat namely Bandal

(Kafla) was created with its headquarter situated at place called

Masreena and construction of new Panc hayat Ghar Masreena

commenced but ultimately , same was stopped by the District

Panchayat Officer on account of some complaint made to the

concerned Minister. As per complainant, construction of Panchayat

Ghar was not being raised at designated/decided site. Thereafter,

representations of up Pardhan and office bearers of Gram Panchayat

were received and the matter was forwarded to the Sub-Divisional

Officer (Civil) Chopal with direction that said matter may be settled in

the Gram Sabha meeting by appointing an observer. Accordingly, on

12.5.2007, in Gram Sabha meeting, Deputy Commissioner directed the

Block Development Officer, Chopal, to include the matter regarding

the dispute of headquarter and construction of Panchayat Ghar in the

meeting of the Gram Sabha to be held in th e month of July, 2007,

wherein vide resolution No.1, Gram Panchayat approved the decision

taken in respect of construction of Panchayat Ghar in its earlier

meetings held on 1.4.2007 and 12.5.2007. At the cost of repetition, it

may be again noticed here that in previous meetings, it was resolved

that Panchayat Ghar would be constructed at place Masreena , which

falls under the hamlet Kaflah of Revenue Village Bandal. Pursuant to

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aforesaid resolution, Block Development Officer, Development Block,

Chopal, vide letter dated 9.7.2007 submitted its report intimating therein

that in the meeting of Gram Sabha held on 1.7.2007, quorum was

complete as per requirement of Section 5 of the Act of 1994, and Gram

Sabha vide resolution No.1 dated 1.7.2007 confirmed the decision of

the Gram Sabha taken in its meeting held on 12.5.2007 regarding place

of construction of Panchayat Ghar at Masreena. However, subsequent

to aforesaid decision taken by Gram Sabha, respondent No.6 filed civil

writ petition bearing No. 1258 of 2007 before the High Court of

Himachal Pradesh praying for following reliefs:-

(A) Annexure P-1 dated 20.8.2005 to the extent showing Kaflah

as Headquarter of Panchayat instead of Bandal be quashed

and set-aside and further direction be issued to respondents

No. 1 to 3 to re-notify the Gram Panchayat by name as

Bandal-Chanjah instead of Bandal Kaflah and its

headquarter be shown at village Bandal instead of village

Kaflah.

(B) Directing the respondents to construct Panchayat Ghar at

Village Bandal as Village Bandal is Revenue Village.

(C) That respondent be further directed to construct the

Panchayat Ghar at identified place by District Panchayat

Officer.

3. This Court taking cognizance of averments contained in

the aforesaid writ petition passed interim order dated 23.8.200 7

directing the parties to maintain the status-quo. However, fact remains

that subsequently on 4.7.2008, the petition was withdrawn in view of the

submissions made by the respondent No.6 (petitioner in CWP No. 1258

of 2007) by stating that he would be approaching the authorities for

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redressal of his grievance. Accordingly, matter was dismissed as

withdrawn and stay order was vacated. On 30.8.2008, Deputy

Commissioner Shimla issued order wherein S.D.O. (Civil) Chopal was

directed to get the construction work of headquarter of Masreena

completed at the earliest. On 23.10.2008, aforesaid S.D.O. further issued

office order to B.D.O. Chopal to get the construction work done

immediately and till date a sum of Rs. 1,70,000/- has been spent on the

same. But respondents being aggrieved with the resolution and

subsequent decision dated 30.8.2008 by Deputy Commissioner, Shimla,

preferred representation to the Secretary Panchayati Raj, Shimla, HP,

opposing construction of new Panchayat Ghar at Masreena. Record

reveals that Secretary, on the basis of averments contained in the

representation, ordered status-quo vide order dated 30.1.2009 (P-12)

and subsequently, vide orde r dated 10.7.2009 allowed the

representation preferred by present respondent by ordering that

Pradhan Gram Panchayat, Bandal would convene an extra ordinary

general meeting of the Gram Sabha within a period of 30 days from

issue of this order for deciding the exact headquarter of the Sabha

Area. In this regard, Secretary also directed the District Panchayat

Officer, Shimla, or his representative to remain present in that meeting

and further observed that if the Gram Sabha decides to fix the

headquarter at Sub-village, Masreena or any other location within the

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boundary of revenue village, Bandal, then Gram Panchayat could

immediately take up construction of Panchayat Ghar at the location.

However, if Gram Sabha proposed to fix some other location outside

the boundary of revenue village, Bandal, as headquarter, then the

recommendations of the Gram Sabha ma y be sent to the State

Government to decide the headquarter in terms of section 3 (Clause 2)

of the Act of 1994. Present petitioner being aggrieved with the passing

of aforesaid order passed by the learned Secretary Panchayati Raj,

approached this Court by way of present writ petition.

4. Mr. B.C. Negi, Senior Advocate, duly assisted by Mr.

Narender Kumar, Advocate, appearing on behalf of the petitioners

vehemently argued that impugned order passed by the Secretary

Panchayati Raj, is not sustainable in view of the fact that the

concerned authority failed to take into account the fact that place for

setting up new Panchayat Gh ar in question had been previously

approved by the Gram Sabha in its meeting and as such, concerned

authority had no authority, whatsoever, to change the decision of the

Gram Sabha, which was taken unanimously in its meeting. Mr. Negi

strenuously argued that once decision taken by the Gram Sabha to set

up Panchayat Ghar at Masreena being a central place was accepted

by the State Government, Secretary Panchayati Raj, had no occasion,

whatsoever, to intervene in the matter and order for fresh meeting of

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Gram Sabha. He also contended that he learned Secretary, while

passing the impugned order failed to take note of the fac t that

decision to set-up headquarter was taken on 12.5.2007 in the presence

of Panchayat Inspector of Development Block Chopal and thereafter

issue at hand was discussed in the meeting held in 1.7.2007, wherein

vide resolution, Gram Sabha approved the earlier decision taken by it

for construction of Panchayat Ghar. In the present case,

representation was filed before the Secretary, Panchayati Raj in

December, 2008 i.e. approximately after two years of the aforesaid

decision taken by the gram Panchayat and as such, Secretary,

Panchayati Raj, Shimla has fallen in grave error while accepting the

representation of the respondent for some extraneous reasons. Mr.

Negi also invited attention of this Court to Annexures P-12 and P14 i.e.

orders passed by the Secretary Panchayati Raj on the representations

filed by the respondents, to demonstrate that it is not understood under

what provisions Secretary Panchayati Raj, Himachal Pradesh could

entertain representation, if any, of the respondent, and as such, he had

no authority whatsoever, to set-aside the order of Gram Sabha taken

on 12.5.2007, wherein it was unanimously decided that headquarter of

newly created Gram Panchayat would be at Masreea. He also stated

that learned Secretary failed to appreciate that one Shri Daulat Ram

had already donated/gifted his land for construction of headquarter at

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Masreena. While concluding his arguments Mr. Negi, forecefully

contended that once decision was taken by the Gram Sabha on

12.5.2007 resolving therein to set-up headquarter at Masreena, which

was duly accepted by the State of Himachal Pradesh as clearly

emerges from its reply filed in earlier CWP, there was no authority

whatsoever, with the Secretary Panchayati Raj to re-look in to the

matter that too at the behest of a person, who had earlier approached

this Court by way of writ petition and later on withdrawn the same with

liberty to approach the appropriate authority for redressal of his

grievance. In the aforesaid background, Mr. Negi prayed that the

instant petition may be allowed and the impugned order passed by the

Secretary, Panchayati Raj, may be quashed and set-aside.

5. On the other hand, Mr. Rupinder Singh Thakur, learned

Additional Advocate General, representing respondents No. 1 to 4

supported the order passed by the Secretary Panchayati Raj and

stated that no interference, whatsoever, of this Court is warranted in the

present facts and circumstances of the case. Mr. Thakur, vehemently

argued that bare perusal of the order suggests that no prejudice has

been caused to any of the party, rather, Secretary Panchayati Raj,

solely with a view to ensure that wish of people of area prevails,

ordered to convene the general meeting of gram Sabha. He also

contended that it stands duly proved on record that 120 members of

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Gram Sabha participated and they all unanimously resolved to

construct Panchayat Ghar at Vilage at Dabha , which falls in Chak

Bandal, instead of Masreena. While concluding his arguments, Mr.

Thakur, vehemently contended that there is no illegality/infirmity at all in

the impugned order because same has been passed to ensure that

headquarter of Gram Panchayat is constructed at the place, which is

convenient to all the residents of newly created Panchayat. While

refuting the submissions having been made on behalf of Mr. Ne gi,

wherein he stated that Secretary had no authority, whatsoever, to set-

aside the order of Gram Sabha taken in its meeting held on 12.5.2007,

Mr. Thakur, argued that there is no question of setting aside any

decision taken by Gram Sabha in its meeting he ld on 12.5.2007 but

order passed by Secretary clearly suggests that there is a dispute

among the residents of that area with regard to location of

headquarter and as such, Secretary rightly intervened in the matter to

ensure that will of the people of the area prevails and headquarter of

Panchayat is constructed at the most convenient place. Shri Neel

Kamal Sood, counsel representing respondent No.6 while inviting the

attention of this Court to the supplementary affidavit filed by

respondent No. 6 submitted that since petitioner himself participated in

the meeting of Gram Sabha held on 6.2.2011 and agreed for

construction of headquarter Panchayat occurred at village Bandal,

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present petition deserves to be dismissed. As per him, meeting of Gram

Sabha was held on 6.2.2011, wherein respondent No.5 participated as

a Pardhan of Gram Panchayat Bandal. He also invited attention of this

Court to the Supplementary affidavit filed on behalf of respondent No.6

to demonstrate that meeting was held on 6.2.2011, wherein petitioner

himself agreed for the construction of Panchayat Bhawan at village

Bandal and he appended his signatures at page No.4 at Sr. No. 59. He

also stated that factum qua appending signatures by the petitioner

also stands proved on record because there is no rebuttal whatsoever,

in the reply filed by the petitioner to the supplementary affidavit filed on

behalf of respondent No.6. Mr. Sood, vehemently argued that keeping

in view the peculiar facts of the case, especially, divergent stand taken

by the petitioner, respondent-State as well as respondent No.6, it would

be appropriate in case fresh meeting is ordered to be called in the

presence of some officer and then decision is taken with regard to

setting up of new Panchayat Ghar.

6. I have heard the learned counsel for the parties and

carefully scrutinized the record.

7. Careful perusal of the pleadings available on record

clearly suggests that vide notification dated 20.8.2005, respondent-

State created new Gra m Panchayat namely Bandal (Kafla) and

thereafter on 8.11.2006, a meeting of Gram Sabha was held, wherein it

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was unanimously decided to construct headquarter of gram

Panchayat at place called Masreena. However, construction of gram

Panchayat Ghar at Masreena was stopped by the District Panchayat

Officer vide order dated 15.5.2007 on account of some complaint. But

fact remains that thereafter on 12.5.2007, Deputy Commissioner

referred the matter to Sub-Divisional Officer, Civil Chopal with a

direction that the said matter may be settled in the Gram S abha

meeting by appointing an observer and accordingly, meeting of Gram

Sabha was held on 12.5.2007 in the presence of Panchayat Inspector

but no decision whatsoever, could be taken qua the setting up of

headquarter of newly created gram Panchayat. But thereafter with

the intervention of Deputy Commissioner Shimla , meeting of gram

Sabha was again convened in the month of July, 2007, wherein vide

resolution No.1 dated 1

st July, 2007, decision was taken qua the

construction of Panchayat Ghar strictly in terms of earlier meetings held

on 1.4.2007 and 12.5.2007. Accordingly, on 9.7.2007, Block

Development Officer, Chopal submitted report to Deputy Commissioner

intimating therein that quorum was complete as per requirement of

Section 5 of the Act of 1994, and Gram Sabha vide resolution No.1

dated 1.7.2007 confirmed the decision of the Gram Sabha taken in its

meeting held on 12.5.2007 regarding place of construction of

Panchayat Ghar at Masreena.

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8. While hearing the arguments having been made on behalf

of respective parties, this Court had an occasion to peruse the record,

careful perusal of which, disclosed that respondent No. 6 had earlier

filed the writ petition (as has been mentioned above), which was

withdrawn by the him with liberty to approach the author ity for

redressal of his grievance. Accordingly, stay order was vacated. It also

emerges from the record that after dismissal of the petition supra,

preferred by respondent No.6, Deputy Commissioner Shimla ordered for

construction of work at Masreena in terms of the resolution passed by

Gram Sabha but thereafter, representation was filed by respondent

No.6 before Secretary Panchayati Raj, who on 30.1.2009 ordered status

quo and finally on dated 1.7.2009, directed/ordered Pradhan Gram

Panchayat to convene an extra ordinary general meeting of the Gram

Sabha within a period of 30 days from issue of this order for deciding the

exact headquarter of the Sabha area. Record further reveals that

pursuant to the aforesaid order passed by Secretary Panchayati Raj,

meeting of Gram Sabha Bandal, General house Kafla was convened

on 7

th August, 2009, wherein 120 members, out of 193 were present and

by majority, it was decided/resolved that construction would be done

at ‘Dobha’ instead of Masreena as decided earlier, However, due to

pendency of the instant writ petition decision taken in the meeting,

could not be given effect to.

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9. Now question, which remains to be decided by this Court is

whether order dated 10.7.2009 passed by Secretary Panchayati Raj,

can be termed to be legal in the facts and circumstances of the case

or not? Bare perusal of order supra suggests that same has been

passed solely with a view to resolve the controversy at hand as per the

popular wish of the people living in the Gram Sabha area. It also

emerges from this order that while issuing notification dated 20.1.2005,

the actual location of Panchayat Ghar was not determined and only

headquarter as Bandal (Kafla) was mentioned and since there was a

dispute with regard to location of the Panchayat Ghar of the Gram

Panchayat Kafla, Secretary ( Panchayati Raj) ordered for convening of

extraordinary general meeting of Gram Sabha within a period of 30

days from the issue of this order.

10. Perusal of order supra clearly shows that it is a very

innocuous order, wherein only direction was issued to the Pradhan

Gram Panchayat to convene extraordinary general meeting but close

scrutiny of impugned order suggests that due opportunity of being

heard was afforded by him to all the affected parties including

petitioner before passing order under challenge. It also emerges from

the record that in newly created Panchayat, Bandal, there are only two

revenue villages i.e. Bandal and Chanjah. The sub-village Kaflah as well

as Masreena both fall in the revenue village Bandal and Gram Sabha

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Bandal is very scattered Panchayat with lot of sub-villages and as such,

Panchayat Ghar can be constructed at any place within boundary of

revenue village as notified by the State Government. But, Secretary,

Panchayati Raj, has rightly recorded that location of Panchayat

headquarter should be as per the popular wish of the people of the

area and accordingly, he ordered for the extraordinary meeting.

Hence, this Court sees no illegality in the order passed by the Secretary,

Panchayati Raj. Now adverting to the contention put forth on behalf of

Shri Negi, wherein he stated that once Gram Sabha had already

resolved in its meeting that headquarter would be constructed at

Masreena, there was no authority whatsoever, with the secretary to

undo the earlier resolutions passed by the Gram Sabha. While referring

to the affidavit filed by the respondent-State in earlier writ petition, Mr.

Negi also stated that decision taken by the Gram Sabha in its meeting

held on 12.5.2007 was accepted by the respondent-State and

thereafter on 15.6.2007, Deputy Commissioner, Shimla directed the

B.D.O. Chopal to include the matter regarding dispute of headquarter

and its construction in the meeting to be held on July, 2007.

Accordingly, matter was placed before the Gram Sabha and vide

resolution dated 1.7.2007, decision taken in previous meetings, was

approved and as such, respondents-State at this stage, cannot be

allowed to take contrary stand.

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11. There is no doubt that in earlier meeting held on 12.5.2007,

it was decided to construct headquarter of newly carved out

Panchayat at Masreena and same was accepted by the Deputy

Commissioner but fact remains that subsequent decision taken on

7.8.2009 has also been taken by general house meeting of Gram

Sabha, wherein 120 members, out of 193 participated and by majority

agreed that Panchayat Ghar would be constructed at Dobha. Hence,

it cannot be said that respondent-State has changed its stance, rather,

member of the Gram Sabha, who at one point of time agreed for

place masreena in its meeting held on 7.8.2009, resolved to have

headquarter of Panchayat Ghar at Village Dobha in the subsequent

meeting of Gram Sabha. After seeing the divergent stands taken by

the parties to lis i.e. petitioner, respondents No. 1 to 4 and 6, this Court is

of the view that there is no illegality and infirmity in the order passed by

the Secretary Panchayati Raj, wherein he ordered for convening of

general house meeting of Gram Sabha. Though, in the present case, as

emerge from the record, pursuant to order dated 10.7.2009 passed by

the Secretary, meeting was convened and it was unanimously decided

to construct headquarter of Panchayat Ghar at Village Dobha but

further perusal of the supplementary affidavit filed on behalf of

respondent No.6 suggests that on 6.2.2011, there was another meeting

of Gram Sabha, wherein petitioner also participated along with other

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members and resolved that Panchayat Ghar would be constructed at

Village Bandal, meaning thereby, despite there being order dated

10.7.2009 passed by the Secretary, parties have not been able to settle

their dispute qua location of Panchayat Ghar of newly created

Panchayat. Though, this Court finds force in the contention put forth

by Mr. Negi that once decision was taken in meeting on 12.5.2007 to

have Panchayat Ghar at Masreena, there was no occasion for

authorities to allow/direct Gram Sabha to convene further meeting of

the general house to decide headquarter of the newly created Gram

Panchayat, but in peculiar facts and circumstances, where despite

there being repeated meetings, there appears to be no unanimity

between the members of Gram Sabha qua location of Panchayat

Ghar of the newly created Panchayat, this Court finds it difficult to

accept the contention put forth on behalf of the petitioner. Admittedly,

in subsequent meetings held pursuant to the orders passed by the

Secretary, majority of members of Gram Sabha decided to construct

Panchayat Ghar at Village Dobha but further perusal of the

supplementary affidavit filed on behalf of respondent No.6 suggests

that on 6.2.2011, there was another meeting, wherein it was resolved

that Panchayat Bhawan would be constructed at Bandal for which one

Shri Sant Ram donated land vide gift deed on 5.4.2011.

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12. This Court is pained to see that matter with regard to setting

up of head quarter of newly created Gram Panchayat Bandal (Kafla) is

hanging fire since August, 2005, i.e. date of notification solely, due to ir-

responsible and obstinate attitude of members of Gram Sabha, who

just for their personal egos and gains are creating hurdles in setting up

of headquarter of gram Panchayat and in this process, loss, if any, is

being caused to general public of that gram Panchayat.

13. Consequently, in view of the peculiar facts and

circumstances of the case, this Court deems it fit to direct the Deputy

Commissioner, Shimla, to convene general/joint meeting of members of

Gram Sabha as well as people of all villages, which fall under the

concerned Panchayat, in presence of Sub-Divisional magistrate of the

respective area to ascertain their wish qua actual/convenient location

of Panchayat Ghar of newly created gram Panchayat. Since all the

villagers are required to be intimated with regard to aforesaid meeting,

Deputy Commissioner may give wide publicity qua the convening of

the aforesaid meeting, so that majority of people from concerned

gram Panchayat participate in the meeting to decide the location.

Deputy Commissioner may take steps in this regard within a period of

one month from passing of this order and conclude entire process

within one month thereafter. Immediately after convening of the

aforesaid meeting, Deputy Commissioner shall notify the location of

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Panchayat Ghar of newly created Panchayat on the basis of wish of

people of the area. It is made clear that decision taken in the aforesaid

meeting, would be abided by each and every resident of the area

including the petitioners and respondents. In view of the aforesaid, this

petition is disposed of along with pending application(s), if any.

August 12, 2016 (Sandeep Sharma),

manjit Judge.

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